Senator Hatch's Napster Epiphany

A year ago, few would have predicted that a simple software application written by a college Freshman would capture the international media main-stage. Fewer still would have anticipated that this modest computer-science project would quickly swell to grotesque proportions, terrifying the mighty Titans of Hollywood's entertainment industry, taxing the best wits of US judges and high-priced legal teams. But all this, and more, it has managed to do.

Stunning performance for a Freshman project to be sure; but a perverse complex of acrimonious and absurdly convoluted political contests in Washington, in which a conservative Senator has aligned himself against his own legislation, and of which Napster forms the raw core, has outshone even these considerable achievements.

Flack Infested Waters

When conservative US Senator Orrin Hatch (Republican, Utah), Chairman of the Senate Judiciary Committee, sponsored a particularly twisted piece of legislation called the Digital Millennium Copyright Act (DMCA) back in 1998, it was immediately clear that the powerful recording and movie industry lobbies had managed, finally, to get their wish-lists signed into law.

Hatch's DMCA is a veritable masterpiece of internal inconsistencies, contradictions, and fraudulent assurances purporting to protect the 'fair use' of copyrighted material, clearly written by recording and movie industry flacks who have since delighted in splitting the hairs and treading the thin edges as they assail the very 'fair use' which the Act so touchingly, and impotently, bleats about.

Having grasped, with enviable prescience, the implications of nascent high-tech tools which would soon enable it to control content, the entertainment industry sought to vouchsafe these blessings to itself and its posterity in the guise of protecting content, a vastly different and admittedly admirable goal which no politician in his right mind would dare oppose. Senator Hatch, a decent man -- a law-and-order straight-shooter and perennial friend of free enterprise -- was only too willing to lend a hand in this seemingly noble venture. Two years would pass before the Senator would grasp the slick way in which the entertainment industry had made him their patsy.

In reality, the DMCA is an industry Trojan Horse voted into law by well-intentioned legislators naturally eager to defend copyrights, as required by no less an authority than the US Constitution. What it actually does is make it a crime to defeat a technical access control, such as a weak crypto scheme or an electronic watermark, behind which entertainment content or a software application might rest secure from copyright infringement.

The Act's fair use exceptions and safe harbors are couched in such weasel-wording that the entertainment industry has found itself at liberty to stifle, by the mere threat of lawsuits under the DMCA, small fry who might have a decent claim to its protection, but who can't afford to mount a defense case. This, clearly, is by design. The powerful lobbying groups, the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), whose flacks helped draft the Act, have since wielded it as a club, intimidating all but the best-heeled targets into acquiescing rather than seeking the DMCA's weak protections in court. The RIAA undoubtedly sized up Napster and judged it a vulnerable small-fry player, but in that case they very clearly miscalculated.

Biting the Hands that Feed Them

It evidently never occurred to Senator Hatch that the very technical access controls which the DMCA protects under pain of criminal prosecution could be perverted effortlessly by publishers to make it impossible for one to, say, watch a DVD on a viewer not authorised by the entertainment industry or in a location other than those in which each individual 'edition' is released. It never occurred to him that these controls could enable entertainment and software publishers to hold consumers hostage to pay-per-use schemes for products which, previously, they'd been accustomed to purchase and actually own. But most relevant to our story, the DMCA conspicuously failed, because of its intentionally-illusory 'safe harbor' provisions, to protect Napster from accusations of contributory copyright infringement, in spite of the fact that Napster earns not one penny from the duplication of files shared through its service.

Senator Hatch is no fool, and he has since come to observe, with some acidity, that things have not gone well in court for Napster, a scrappy young company which he clearly admires. It's obvious also that he's disappointed to learn that the DMCA's safe harbor provisions have thus far proved useless to protect the fair use of copyrighted material, as he undoubtedly envisioned they should when sponsoring the bill. He has since experienced what can only be described as a Napster epiphany, and, more importantly, he's begun to act on it.

It's an undeniable and quite delicious irony that the man who sponsored the DMCA should have turned about face to defend Napster vigorously on numerous occasions, and most recently during a Senate Judiciary Committee field hearing on the campus of Brigham Young University in Provo, Utah on 9 October at which he invited Napster's nineteen-year-old founder, Shawn Fanning, to speak. And only a bit earlier, Hatch had issued a statement in response to official White House denunciations of Napster's ongoing court defense, emphasizing that he "thought it important that the court be under no misapprehension that the [Clinton-Administration anti-Napster] brief necessarily expresses the view of Congress."

And here we must confront an irony within an irony, as the Clinton Administration, which has gone to terrible pains portraying itself as refreshingly hip in matters relating to high technology and innovation, came down against Napster and squarely on the side of vested industry interests with a brief of amici curiae denouncing the -- if nothing else, eminently hip -- innovative technology conceived by young Shawn Fanning.

Only Hollywood itself could have imagined the next major kink in this saga, but truth often does manage to live up to its billing as 'stranger than fiction.' To compound the irony even further, Napster retained as its defense attorney none other than the Clintonites' hatchet man in the Microsoft antitrust suit, lawyer David Boies, who was originally tipped to the affair by his own twin sons.

Boies appeared before the Ninth Circuit US Court of Appeals in early October, asking the judges to uphold their current stay of a lower court's injunction against Napster, originally imposed by District Court Judge Marilyn Patel, who ruled that that personal computers are not copying devices and therefore don't qualify for protection under the 1992 Audio Home Recording Act. She further ruled that the DMCA, too, does not provide a safe harbor for Napster, precisely as the industry had intended when they helped draft it.

Boies argued, and quite persuasively, that that duplicating a musical work on a personal computer is in no way different from using on audio recorder, so long as the duplicating is done for personal, not commercial, purposes. The appellate court has yet to rule on whether or not to continue its stay of injunction while the contestants await trial, but regardless of what it should decide, a trial will commence, and the DMCA will get its desperately-needed airing, and subsequent interpretation, in federal court.

The kinks and twists and political intrigues attaching to this story are only beginning to show, and one can only delight in contemplating what might come next. What we have thus far is a stiff-collared conservative Senator renouncing his own, industry-accommodating legislation on behalf of some punk Internet start-up venture; a pseudo-hip and nominally Democratic White House desperately trying to enforce the Draconian provisions of the stiff-collared conservative Senator's original, industry-accommodating legislation; and an extraordinarily talented lawyer with, until now, respectable Establishment credentials suddenly disdaining the political machine for which he had recently done battle, and cheered by, you guessed it, the stiff-collared conservative Senator whose crummy legislation failed to protect Napster from recording-industry abuse in the first place.

Ultimately, it all makes perfect sense: only Washington could actually be more ridiculous than Hollywood. ®